Supreme Court Decides Against Intervening in 'Critical Habitat' Designations

The Supreme Court declined today to take up whether federal regulators and courts take account sufficiently of the economic impacts of "critical habitat" designations under the Endangered Species Act. It is a touchy issue because private property owners, including developers and ranchers, have objected to critical habitat designations that infringe on their ability to do business. The Endangered Species Act specifically states that the Fish and Wildlife Service must designate critical habitats based on "the best scientific data available" but must also "take into consideration the economic impact" of a designation. The service has the discretion to reject an area for inclusion in the critical habitat for economic, national security or "any other relevant impact." FWS favors what is known as the "baseline" approach, in which the government compares the "current state of affairs" with "how things would look after the designation of critical habitat," according to the Obama administration's brief in one of the cases. Property owners challenging the designations argued that the economic analysis should also include other factors, including the impact of the ESA listing in itself, the general economic climate and other regulations that businesses are required to follow. In the first case, Arizona Cattle Growers Association v. Salazar, the 9th Circuit, in a ruling issued in June, upheld the government's designation of critical habitat for the Mexican spotted owl (Greenwire, June 7, 2010). The area encompasses around 8.6 million acres in Arizona, Colorado, New Mexico and Utah. The second case, Home Builders Association of Northern California v. FWS, decided a couple of weeks later, involves the designation of critical habitat for 15 protected species, comprised of four crustaceans and 11 plants. Again, the 9th Circuit endorsed the plan. The final designation included almost 860,000 acres in 34 California counties and one in Oregon...more